DOJ Takes Position on Sexual Orientation & Civil Rights Act of 1964
Wednesday (July 26, 2017) the Trump Department of Justice filed an amicus brief with the United States Supreme Court, taking the position that Title VII of the Civil Rights Act of 1964 does not offer protection based on an employee’s sexual orientation. This brief was filed in a case where the Court is being asked to resolve the split amongst circuit courts as to whether Title VII covers sexual orientation.
The EEOC, in 2015, began taking the position that sexual orientation is covered by Title VII as “discrimination based upon sex,” reversing a decade's long stance that Title VII did not address sexual orientation. That change in enforcement policy seemed inconsistent with the fact that the Employment Non-Discrimination Act or ENDA, which would have prohibited discrimination on the basis of sexual orientation, and later gender identity, had been around since 1994, but had either failed on the floor or not gotten out of committee. If existing law already covered the topic, there would be no need for ENDA. The opinions adopting the EEOC’s approach have used a theory that discrimination based on sexual orientation is a form of gender stereotyping, which those opinions reason is another form of gender discrimination.
It will be interesting to see whether the current administration, in addition to its amicus brief with the Supreme Court, cause the EEOC to change its position with respect to the coverage of Title VII. It will also be interesting to see whether the Office of Federal Contract Compliance Programs changes its position prohibiting discrimination based upon sexual orientation by covered government contractors pursuant to Executive Order 11246.
DOJ Reverses Course on Arbitration Agreements
The National Labor Relations Board has taken the position that arbitration agreements in employment contracts which contain waivers of an employee’s ability to bring a class action or collective action under the arbitration agreement violated the National Labor Relations Act. The Circuit courts around the country have split, but the majority of circuits have held that the NLRB’s position is incorrect.
In a case now before the United States Supreme Court, NLRB v. Murphy Oil USA, Inc., the Trump DOJ has filed a brief with the court reversing its support of the NLRB, and arguing that such arbitration agreements do not violate employees’ rights under the National Labor Relations Act.
Given the current makeup of the Supreme Court, it is likely the new DOJ position will be adopted by the court.
What this means for employers:
If the new DOJ argument is adopted, employers will be free to develop binding arbitration agreements with their employees. They will then be able to avoid costly class or collective action lawsuits with employees.
Mike Moore is a partner in the firm’s Labor and Employment Practice Group with an emphasis on employment discrimination defense. He specializes in litigation of discrimination cases, wage-hour matters, sexual harassment, wrongful discharge, FMLA and employee and supervisor training. He is also a frequent speaker on a variety of employment law topics. Mike has extensive experience before the EEOC and the Wage-Hour Division of the United States Department of Labor, as well as litigation experience in both federal and state courts. He is a member of the Pulaski County, Arkansas and American Bar Associations.
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This news alert is created by the attorneys in Labor & Employment Practice Group at Friday, Eldredge &Clark, LLP. The information provided is not a substitute for legal advice and should be considered for general guidance only. Please contact one of our attorneys for specific legal advice regarding this matter.